I really admire skeptical English bloggers and commentators…

…because they blog under the shadow of the United Kingdom’s insane libel laws.

Witness this travesty of a ruling on the libel case against Simon Singh by the British Chiropractic Association, as related by Jack of Kent.

I first learned about the UK’s exceedingly plaintiff-friendly libel laws when, shortly after I became interested in Holocaust denial, I followed the libel case against Holocaust historian Professor Deborah Lipstadt brought by Holocaust denier David Irving for, well, quite properly calling him a Holocaust denier in one of her books. What makes British libel laws so plaintiff-friendly is that the burden of proof is not on the plaintiff to show that what was written by the defendant is untrue (or written with a “reckless disregard for the truth”) and defamatory, but rather on the defendant to demonstrate that what he or she wrote is true. It is true that Professor Lipstadt ultimately won her case, her victory all the more impressive given how plaintiff-friendly British libel law is and how she in essence had to “prove the Holocaust” in court and why what David Irving writes and says about it constitutes Holocaust denial, but it took many months and a couple of million dollars. If her publisher hadn’t stuck with her, she’d have probably had to settle. Indeed, that was almost certainly David Irving’s expectation when he brought the case–that Professor Lipstadt would settle. She did not and, fortunately, won big. It could have gone the other way if she had had a less skillful legal team.

Since I’ve become interested in “alternative” medicine, I’ve seen examples of the similar abuse of the law, in which various “alternative” practitioners tried to use the law to silence bloggers whose opinions they did not like or writers who criticized them. The most famous example that comes to mind was HIV/AIDS denialist and vitamin magnate Matthias Rath going after Ben Goldacre. Again, it’s true Goldacre won, but only because his newspaper stuck by him and paid for his legal defense. This time around, the British Chiropractic Association is going after Simon Singh for this passage in an article he wrote:

The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

In the U.S., it’s highly unlikely that a lawyer would even be willing to take this case as anything other than cash on the barrelhead, so slim would be the chance that it would make it even past a preliminary hearing. Yet, over Thursday and Friday, Singh has had his first preliminary hearing and his first loss. Let Jack of Kent explain:

As part of libel litigation, the court does have to rule as to the meaning of the relevant passages. This ruling in turn provides which are the appropriate defences. If it is ruled that the passage was “comment” then the defendant has to prove that it was a “fair comment”. If the passage was a statement of fact, then the defendant has “justify” the fact.

And the ruling:

The judge ruled that, notwithstanding that the passage in Singh’s article was a comment piece and published on the comment page, it was a statement of fact. This was an unhelpful ruling, and my heart sank for a moment, but it was not one for which Singh was unprepared. Singh would have preferred to have had a comment ruling, but he did have a full justification defence too, see here. So not ideal, but not a disaster.

But the judge continued. The word “bogus” meant deliberate and targeted dishonesty. So it did not mean that chiropractic for the six named children’s ailments (including asthma) was simply wrong, or that it was contrary to established medical practice or research, or even that it completely lacked evidence.

“Bogus” meant a lot more. The judge held that by the mere use of the word “bogus” Simon Singh was stating that, as a matter of fact, the BCA were being consciously dishonest in promoting chiropractic for those children’s ailments.

It doesn’t matter that Singh had earlier in his article defined “bogus” as “ineffective” not “deliberate and targeted” dishonesty. The consequence is this:

The ruling means that, as it stands, Simon Singh would have to prove at full trial that the BCA were being deliberately dishonest. This is not only extremely difficult but it was undoubtedly not Simon Singh’s view in the first place. The BCA, as with many CAM practitioners, may well be deluded, irresponsible, and sometimes rather dangerous; but calling their promoted treatments “bogus” was not an express statement of their conscious dishonesty.

Indeed, unless there is hard evidence of dishonesty, it may not even be professionally possible for Simon Singh’s lawyers to put the required case to the court: English barristers and solicitors are prohibited from alleging fraud unless there is sound and cogent evidence before them on which to base the allegation.

Basically, it would be very unwise and perhaps impossible for Simon Singh to go to full trial with this ruling on meaning.

In the wake of this nonsensical ruling, Singh apparently has three options. Option one: Appeal the ruling on the meaning of the word “bogus,” which has a high probability of failing, given that higher courts generally defer to the lower courts on such matters. Option two: Take his case to the European Court of Human Rights as a breach of Article 10 (freedom of expression), which he can’t do unless he first appeals and continues until he exhausts all of his legal options in British courts. This could take three years, and there is no guarantee that this will succeed, either. Or…

Option three: Settle.

Singh may have no choice in the matter but to settle. I hope he doesn’t settle, but I understand if he does. He has such an uphill battle from here that it may not make sense to continue. I wonder if there is a legal defense fund to which skeptics may contribute. I’d be willing to make a contribution, for sure. Unfortunately, unless Singh is made of money, option three is clearly the option he will most likely be forced to take.

What of the broader picture? Clearly the U.K., due to its plaintiff-friendly libel laws, is already an inhospitable place for skeptical bloggers and writers. In essence, it’s not even necessary to make an actual factual claim in order to find yourself at the wrong end of a libel suit by a powerful and wealthy organization, with little help. In fact, even if you define a word you are using for purposes of your criticism of “alternative” practices, apparently that doesn’t necessarily protect you from a judge’s defining the word as he sees fit.

Think about it. All Singh did was to make two arguments:

“Group A is promoting treatment X.”

“Treatment X is ineffective against conditions Y, and Z.” (Or: “There is no scientific evidence to support the efficacy of treatment X for conditions Y and Z.”)

Another way to phrase it:

“Group A is promoting treatment X.”

“Treatment X is bogus.”

It’s a non sequitur to conclude from 1 and 2 that group A is being deliberately dishonest. The alternate explanation is that group A truly believes in the bogus treatment X and is honest, but mistaken, in its belief. I’ve made this sort of argument on more occasions than I can remember over the four years that I’ve been blogging. If I were in the UK and happened to make it about a litigious group, I could easily find myself in the same pickle that Singh is in. As The Lay Scientist puts it:

Simon Singh is the victim on this occasion, but if this nonsense continues, then the conditions in which the rest of us – writers and bloggers like myself or Ben Goldacre – have to operate will become ridiculously savage. We’re already at a massive disadvantage from the fact that it takes ten seconds to make a claim and ten hours to carefully prove it wrong. Now the legal system is ensuring that it costs ten pence to make a dodgy medical claim and ten thousand pounds and a court case to attack it.

I feel for you my skeptical British brothers and sisters. I also admire you. If I lived in the UK, I don’t know if I would have intestinal fortitude to keep blogging if Singh settles or appeals and loses. It’s times like these when I truly cherish the wisdom of our Founding Fathers for having enshrined freedom of speech in the Constitution as part of its First Amendment. True, it doesn’t entirely prevent legal thuggery such as what the British Chiropractic Association is doing, but it does make it a lot more difficult.

35 Comments

I won’t bother to repeat what you’ve already quoted me as saying, but I can’t begin to describe how frustrating this experience is becoming for us.

It’s also potentially damaging to you guys. If Seed or any of you resident bloggers have assets in England, you can be sued in the London courts.

And here’s another amazing statistics – it costs one hundred and forty times more to run a libel case in the London courts than it does on average in the rest of Europe. It’s a parasitic industry that is destroying free speech in the name of profit.

I hope our US friends will give the British Chiropractic Association that they deserve.

The idea that arguments about whether treatments work or not should be a matter for courts is ludicrous and dangerous. It extends far beyond quackery and endangers science itself, which thrives on argument and dissent.

If the chiropractors had good evidence then I presume they would have produced it. Their lawsuit is an act of desperation, but a very dangerous act nonetheless.

I feel for you my skeptical British brothers and sisters. I also admire you. If I lived in the UK, I don’t know if I would have intestinal fortitude to keep blogging if Singh settles or appeals and loses.

Last time I checked, your publication of this blog where it can be read in Great Britain qualifies you for similar actions. In fact, there have been cases where a US plaintiff sued a US defendant in British courts — and won.

What makes British libel laws so plaintiff-friendly is that the burden of proof is not on the plaintiff to show that what was written by the defendant is untrue (or written with a “reckless disregard for the truth”) and defamatory, but rather on the defendant to demonstrate that what he or she wrote is true.

In the US, there is no burden of proof in civil cases. Lawsuits are decided based on the preponderance of evidence. In other words, both sides present their cases and then the judge or jury make their decision based on which side they believe (ie. has better evidence). The burden of proof–aka. the presumption of innocence–only comes into play for criminal cases. It is meant as a check on the power of government and a protection for individual citizens.

There is no reason to require burden of proof in civil cases–which are mostly disagreements between citizens. To do so is to turn one of the parties of the lawsuit into the equivalent of a prosecutor who cannot jail anyone unless he can prove their guilt beyond a reasonable doubt. The British system for judging libel cases is inherently wrong and needs to be replaced!

The problem is that the assumption for British libel law is in essence in favor of the plaintiff. Rather than the plaintiff’s having to prove, through the preponderance of evidence that something is defamatory, the defendant has to prove through the preponderance of evidence that it is not. In the U.S., the First Amendment renders that equation the other way around, which is as it should be.

Last time I checked, your publication of this blog where it can be read in Great Britain qualifies you for similar actions. In fact, there have been cases where a US plaintiff sued a US defendant in British courts — and won.

True, but it is much more difficult. It’s very expensive to enforce a transnational libel judgment, and U.S. courts are not particularly thrilled to do so, which is why the famous case that I’m aware of involved a very wealthy Saudi businessman. Some states are also passing anti-libel tourism laws, and there is a bill in Congress to ban the enforcement of defamation judgments in foreign courts unless that country is found to have free speech protections at least equal to those in the U.S. If you live in the U.K., though, there is no potential escape.

This case is eerily similar to a Dutch case where a judge ordered that the Dutch Association against Quackery had to pay â¬20.000 to a quack for calling her a quack, because the dictionary says a quack is a fraudster and this quack actually believed in her own quackery.

The burden of proof is not actually reversed. The complainant has first had to prove that you made the statement and that it was likely to damage your reputation in the eyes of reasonable man. You are then claiming justification which is an affirmative defence, the defendant always has to prove an affirmative defence. An example of an affirmative defence in criminal law is self-defence, the defendant has to prove they were acting in self-defence.

The judges ruling is nuts. First Singh already defined the term in his book, secondly there is nothing in the term bogus that demands the person peddling or offering a bogus item knows it is bogus. Where apart from his backside did he pull that?

Singh should take this all the way. Eventually if necessary to the European court. To have an important and very balanced book like that banned by a bunch of deluded manipulators would make Europe the laughing stock of the world.

The advantage to Singh is that at each stage he should go for maximum publicity, with luck a lot of his expenses will be paid by an increase in book sales. If that does not work, he can appeal on blogs etc for funds. He will get them.

he burden of proof is not actually reversed. The complainant has first had to prove that you made the statement and that it was likely to damage your reputation in the eyes of reasonable man. You are then claiming justification which is an affirmative defence, the defendant always has to prove an affirmative defence. An example of an affirmative defence in criminal law is self-defence, the defendant has to prove they were acting in self-defence.

A distinction without a difference in practice, as the bar for this is set risibly low in the U.K. The bottom line is that the burden of proof falls far too much on the defendant than is reasonable. Indeed, even the United Nations Human Rights Committee (the U.N. hardly being known as a bastion of free speech defenders–think “defamation of religion” laws) criticized British libel law last year for discouraging discussion of important matters of public interest.

The real problem with the ruling in the present case is that it restricts Singh’s defence to one that is untenable, first off since it would require him to prove the truth of something he never said and pretty clearly does not believe. And this simply on the judge’s ruling that this meaning (to paraphrase, “you accuse them of deliberate deception”) is the only way what Singh wrote could, and would, be interpreted by a typical citizen.

The defence would also be asking Singh to prove something pretty much unprovable, even if it were true (which, again, no one is claiming it is). How do you prove someone, or a trade body, did something “with malice aforethought”? It is a non-starter, really, unless there is a “smoking gun” memo somewhere that you can find (like, to give an example, the Big Tobacco company reports about “let’s put more nicotine in cigarettes as we know it is addictive and makes people keep smoking”). Indeed, the impossibility of proving same is another reason why Singh self-evidently did not mean the article in this sense.

As Jack of Kent makes clear, the prospects of changing Eady’s bizarre ruling are poor unless it goes to the European Court, but that would require several UK-based appeal stages. Of course, the legal fee-o-meter – see MArtin’s comment above – will be running (very expensively) on both Singh’s and the BCA’s legal tabs through any and all appeal stages. Worse, if Singh ultimately loses he would likely end up liable for ALL the costs of BOTH parties. The “smart” move, absent matters of principle, would be to cut and run now, issuing a public statement clarifying the meaning he ascribes to “bogus”.

I think, myself, that Singh will be tempted to appeal Eady’s ruling. The question is how he would be able to meet the running costs of the appeal and “insure” himself against the potential further costs of possibly losing. Personally I would like to see the newspaper in which he published the article, the Guardian, step up and fund his appeal against the ruling as a matter of clear public interest. The Guardian were expressly NOT sued by the BCA, which suggests they apologised for running Singh’s article (and Ben Goldacre has said as much on his blog). But the implications of Eady’s ruling for clear speaking on contentious issues in general are so chilling that I think the paper should strap their ‘nads on, get off the bench, and into the game.

There has been far too many abuses of the UK libel laws in recent years. (See past issues of Private Eye for countless examples). However I am still in favour of the law in principle.

Freedom of speech seems to be a holy cow in the US but in the UK we have a slightly more tempered version – freedom of opinion. You can say you believe anything you like. But if you badmouth someone by presenting material as facts, you’ve got to have the proof to back it up. That seems only fair. It does stop a lot of the mudslinging and unfounded ad hominem attacks we would otherwise see in our newspapers. In fact it is the biggest weapon the little guy has against a writer/editor/publisher with a grudge.

Sadly things don’t always play out as they should – that’s true in any legal system. I’m a big fan of Simon’s and the judge’s ruling in this hearing was clearly wrong. But in general the requirement to have the facts on your side before you put your words into print is to the skeptics’ advantage.

lazygreen, both the US and Canada have slander and libel laws. If you say something that is demonstrably not true then you can be sued for the harm it causes.

The thing is, over here it’s up to the person “defamed” to show that what you said was false and caused harm. In the UK it would seem that it’s assumed that you are lying and have caused harm, so you have to prove that this isn’t true.

Couple that with the fact that, apparently, a judge can decide what you meant to say, even if it’s not what you said, and things get really weird, as we can see.

As a rational SkeptK I’m as vocal as any when it comes to BOGUS ideas. But when the governmental idiots pass these types of laws then stop fighting the problem. After a few dozen people are dead or crippled maybe the idiots will pay attention? Nope! they wont they don’t care. After a few thousand die then the people will wake up get pissed …THEN the idiot leaders(?) will pay attention. Then the con artists will gather together and show in court that you can’t prove anything, and the government idiots will drop the whole thing and happily wait for the next thousand to be harmed. It is held to a minimum because FREE speech is the only effect deterrent. And since most of the con-men are in religion and government they will do what they can to stop the use of free speech. Think this a conspiracy theory??? Then you have not been reading blogs describing what is being done in europe and being attempted in the US.

I agree with Tsig: English skeptics should turn the tables and sue the woo-meisers for defamatatory statements against science.

In all seriousness, though, if there is some charitable fund that goes to the legal defense, I’ll be glad to contribute my last couple dollars. The fact that this can happen in a (generally) free nation is deplorable.

Is it an option for Mr. Singh to say (write?) to court that to continue to fight would be to try to prove something he doesn’t believe, since the court has extracted from his words something he didn’t mean? And then make his statement on the actual meaning of “bogus” as defined in the same article.

It does seem perverse for the judge to ignore the article that is the centre of the case.

Freedom of speech and libel laws are two separate issues. Depending on the hot buttons, one can argue for either country having the most freedom or libelous actions in speech.

Then there is the judge as the third ingredient in this discussion, who seems to be more important. For this ruling it is Justice Eady who is, apparently, the leading judge hearing these types of cases.

However, that does not mean the press is kind:

Sir David Eady doesn’t ‘do’ emotion. He doesn’t really ‘do’ anything except the strict letter of the law, even when that law is palpably asinine.

As cold as a frozen haddock, Mr Justice Eady hands down his views shorn of moral balance…

I do not remember seeing any US newspaper being quite this strong with Antonin Scalia and his guns stupidity in District of Columbia v. Hellerdo. That judgment in my view insures killing, in a somewhat similar way as Eady opening the door for more woo.

On the other hand, this is the same judge that ruled for Dr. Ben Goldacre, and Max Mosley. Makes sense out of the Daily Mail quotes, as the two individuals are morally at opposite poles. To be clear, Mosley is as about as low as it gets.

Orac

famous case that I’m aware of involved a very wealthy Saudi businessman

If this is in reference to Dr. Rachel Ehrenfeld and Saudi businessman Sheikh Khalid bin Mahfouz, where the State of New York recently passed a law because of the UK judgment against Dr. Ehrenfeld, the judge was Eady. There was also another where Eady awarded damages to a Saudi Arabian billionaire against the Wall Street Journal Europe. This case was overturned by the law lords.

Maybe Eady is bored with it all and writes judgments out in advance. Or, from looking at his picture in the press, he looks stiff enough to want to use a chiropractor if not already doing so. In the latter instance, Eady should not have heard the case.

In general I’d be against using libel suits against UK purveyors of woo, since they deserve free speech as much as anyone else, but narrowly targeted against those who use the libel laws against their critics in a tit-for-tat manner sounds good. Sue the British Chiropractic Association for slander against conventional doctors and see how they like it.

He needs to sue the judge for libel. The judge stated that Singh meant deliberately malicious when he wrote bogus. This is clearly libeling Singh’s true beliefs and the judge should need to prove in the court of law that this is what Singh meant when he wrote the phrase.

So the BCA is completely correct, chiropractic does prevent these problems. They should call this childâs parents as witnesses to that effect. Of course chiropractic treatments can have side effects, and reasonable people may believe that those side effects (such as were experienced by this poor child) are worse than the problems being treated.

To my mind, the failure of homeopaths to conduct double-blind trials and attempt to publish their results in peer-reviewed journals is very good evidence that they know their claims are not true and are consciously deceptive, but mostly likely a court wouldn’t see it that way.

“Rather than the plaintiff’s having to prove, through the preponderance of evidence that something is defamatory, the defendant has to prove through the preponderance of evidence that it is not.”

Technically speaking, the plaintiff has to prove that the statement is defamatory. If he/she can establish that, then the burden is on the defendant to offer a defence, of which truth is one. Now, given that the bar for defamation is very, very low, this basically amounts to reversing the burden of proof. When you combine this with an extraordinarily broad jurisdictional doctrine (anything readable in Britain is deemed to have been published there and therefore subject to the defamation laws), you have a very hostile environment for journalists and others who might be sued. About the only thing going for them is the fact that plaintiffs who lose have to pay the defendant’s legal costs, but those are usually so high that they’re never recouped, especially if the plaintiff is not British.

“He needs to sue the judge for libel.”

As far as I’m aware, you can’t. Fair and accurate relations of court proceedings are privileged, and presumably the judge himself falls under that. There’s a similar exemption for MPs speaking in Parliament.

About the only thing going for them is the fact that plaintiffs who lose have to pay the defendant’s legal costs, but those are usually so high that they’re never recouped, especially if the plaintiff is not British.

Indeed. Nearly a decade later, Professor Lipstadt still hasn’t recouped a dime, as far as I’m aware, from David Irving, who doesn’t appear to be impoverished. At least, he seems to manage to find the funds to live a relatively comfortable life and to travel to the U.S. from time to time to spew his Holocaust denial venom.

Not sure if this is covered somewhere in the comments above (don’t have time to comb through them right now), but I could swear I remember reading somewhere that truth isn’t even (necessarily) a defense in British defamation cases – what you said can be shown to be true and you can still lose because it can be judged that you simply shouldn’t have said it. IIRC, truth is an absolute defense in American libel and defamation law.

Could be misinformed or misremembering, though, on either or both of those points. Anyone able to clear this up?

I also remember reading an opinion that this legal standard is at least partly born out of the enormous value placed on reputation in British middle and upper class value systems.